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Scalia, SCOTUS & Troy Davis’ Last Gasp

Late yesterday afternoon, the Supreme Court of the United States stayed the execution, set for Tuesday night, of Cleve Foster in Texas. The words of the order were simple:

11-6427 FOSTER, CLEVE V. TEXAS
(11A302)
The application for stay of execution of sentence of death presented to Justice Scalia and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the issuance of the mandate of this Court.

But there is way more than meets the eye here, because this is not Foster’s first time to the Supreme Court stay rodeo. From a CBS News report earlier in the day before the stay was issued:

Cleve Foster, a Texas inmate sentenced to die for the rape-slaying of a Fort Worth woman nearly a decade ago, is scheduled to be executed tonight – he has been spared from the death chamber twice this year amid appeals.
Foster, 47, is set to die Tuesday evening for fatally shooting 30-year-old Nyaneur Pal, whose body was found in a ditch by pipeline workers on Valentine’s Day 2002. Foster’s execution would be the 11th this year in Texas.

That is what is unusual here. Foster has been up to the Supremes twice and was bounced back the last time without even reaching the merits. Yet here he is again – with a stay – a stay in which the process was initiated by Antonin Scalia. Now the truth of the matter is Scalia is the designated on call judge, what we in the criminal defense bar colloquially term the “hot judge”, for the 5th Circuit, so it would go through Nino. But, still, it is fascinating to see two death cases in five days stayed out of Texas, the death penalty capital of the world, with Scalia’s name on the order.

Foster won his first pardon in January from the U.S. Supreme Court, which halted his execution again in April when it agreed to reconsider an appeal that raised claims of innocence and poor legal assistance early on in his case.

His execution was rescheduled for Tuesday after the high court turned down that appeal.

I was half convinced the Court might even lift the new Foster stay Tuesday night, but I am on the after hours contact list, and have received no such notice as of the time of the instant posting and it is now into Wednesday morning.

Remember, I said this was the second such instance in the last five days? The other one was Duane Buck late last Thursday, which was also somewhat unexpected, although, perhaps, less so than Foster.

Still, that is two surprising instances of death stays by the Supremes in a very short time. Which brings us back to the most talked about execution case in recent memory, Troy Davis in Georgia. Is it a sign or signal from the Supreme Court to Troy Davis’ attorneys and/or the Georgia Clemency Board? Well, probably not literally, no; it would be pretty hard to make that case.

But, figuratively, maybe Read more

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.